A federal judge appeared skeptical on Thursday of the Justice Department‘s argument that President Donald Trump lawfully federalized the California National Guard when he deployed it to Los Angeles over the weekend amid violent protests over immigration raids.
Judge Charles Breyer of the U.S. District Court of the Northern District of California, hearing arguments in an emergency request from Gov. Gavin Newsom (D-CA) and California officials for the court to bar Trump from using the troops in Los Angeles, grilled the DOJ’s lawyer. Breyer spent most of the roughly hourlong hearing focusing on the Trump administration’s argument that its order is not reviewable by a federal court.
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Brett Shumate, the DOJ lawyer, also argued that even if the decision to federalize the National Guard were reviewable, the president lawfully invoked 10 U.S.C. § 12406 by claiming there was a rebellion or danger of rebellion against the government and that the president was unable to execute laws with regular forces.
Breyer pressed Shumate on whether Trump obeyed the statute’s requirement of issuing the order “through” the governor of the state to federalize the troops, to which the DOJ lawyer argued the governor is “a conduit for those orders” but not able to veto the president’s order.
The judge questioned during the hearing how the DOJ’s argument, that its claims were not reviewable by a court, would be different from the power of a monarchy.
“If the president finds there’s a rebellion, there is a rebellion. If the president finds this or that, or so. And I try to distinguish in my mind, how is that any different from what a monarchist does?” Breyer said. “He says certain things, he finds certain things, and he does certain things. But that’s not where we live. I live in response. We live in response to a monarch.”
“This country was founded in response to a monarchy, and the Constitution is a document of limitations, frequently limitations, and an enunciation of rights. So I’m just trying to figure out where the lines are drawing, because line drawing is important,” Breyer said.
Breyer began the Thursday afternoon hearing from his San Francisco courtroom by thanking the parties for issuing their briefings quickly, explaining how he wanted to hear from both sides before making a decision. California officials had asked the judge to pause the president’s use of troops in Los Angeles immediately without an opposition briefing from the Trump administration, which Breyer had declined to do.
California officials filed their lawsuit in federal court on Monday against Trump’s use of the National Guard and Marines in Los Angeles to protect federal property amid protests, some of which turned violent, over federal immigration raids. Newsom and California Attorney General Rob Bonta asked Breyer to issue a temporary restraining order quickly on Tuesday, but Breyer instead scheduled the Thursday hearing to consider the motion.
Breyer showed less skepticism toward lawyers for the state officials during the hearing, focusing most of his questions toward the Justice Department.
DOJ SLAMS NEWSOM’S BID TO HALT TRUMP’S USE OF TROOPS AS A ‘CRASS POLITICAL STUNT’
The judge did question the lawyer for California over what he would be able to do regarding the deployment of the Marines, contending the federalization of that force is not at issue and that the Marines had not been deployed to Los Angeles as of the time of the hearing.
Breyer said he expects to issue an order as soon as later on Thursday. Shumate asked the judge to pause any order blocking the president’s ability to use the National Guard for 48 hours to allow for appeal, if he chooses to order in favor of California.